Have your say

Feedback for the Law Commission

The Law Commission has reached a preliminary view that “transgender, non-binary, and people who have an innate variation of sex characteristics” should have specific protection from discrimination included in the Human Rights Act (HRA). It has published an Issues Paper and is seeking public submissions on the proposal by 5 September.

Clarifications

RGE met with the Law Commission (LC) on 6 August and received some clarifications:

• The outcome of the review is not finalised - the LC may ultimately make a different recommendation from the preliminary one, including that no change is needed to the HRA.

• The LC wants to hear submitters’ reasons for or against changes in the Act, including the exceptions contained in Part 2, and the wording that should be used. It is interested in the rationales and evidence for our suggestions.

• Law reform must be practical. The LC asks, if exceptions hinge on the definition of ‘sex’, how will that be defined and how will a person’s sex be proven? (See RGE’s suggestion in Question 59 below.)

• The LC wants to know about the ripple effects that changes might have in general and on the rest of the Act, especially any possible unintended consequences.

Key points to make

• Gender identity terms (transgender, gender fluid, non-binary, queer etc) are subjective, fluid, subject to fashion, unverifiable and are highly contested. They should not be the basis of any law.

• There is no boundary to a gender identity or gender expression - any behaviour could be claimed as being part of a gender identity and would become subject to protection. All definitions used in the HRA must be precise and unambiguous.

• Any potential new wording in the HRA must be kept separate from the already protected characteristic of sex. ‘Sex’ must be defined as “the trait that determines whether a sexually reproducing organism produces male or female gametes.”

• Should it be decided that additional protected characteristics do need to be added to the HRA, the most acceptable wording would be: “variations of sex characteristics or non-conformity to sex stereotypes.” This wording is workable because the terms are definable and objective. Any new protections must be proportionate and must not impede the rights of others.

• The purpose of any changes should be to protect, for example, a girl with facial hair from being treated differently from other girls; or a boy with feminine mannerisms being treated differently from other boys. The changes should not have the unintended consequence of outlawing differentiation of any sort between boys and girls.

• No matter the wording that is finally chosen, for the safety and dignity of adults and children alike, school policies must be based on SEX. Schools must have an exception in the Act that protects necessary sex-differentiated activities.

It is important to provide examples from your own experience to support your feedback. The LC acknowledges there is a lack of research evidence on these issues and wants to hear about the practical implications of the proposed reforms.

There are 80 questions in the Issues Paper but there is no need to answer all of them. The ones specifically relating to education are Q49-64 in Chapters 12 &13 and Q75 in Chapter 17. Online submissions can be made here. Or written submissions can be sent to com@lawcom.govt.nz

Protected characteristics wording

[Numbers in brackets indicate paragraphs in the LC Issues Paper.]

Questions 6, 8, 9 & 49

We are not convinced that discrimination against gender minorities is so severe that specific legislation is needed to counter it. Of the examples of discrimination that the LC describes (12.8) - difficulty in admission to single-sex schools, eligibility for sports, access to bathrooms, misgendering, deadnaming, bullying, uniform restrictions, and grouping according to sex - only two (deadnaming and bullying) might be related to the students’ ‘gender identity’. All the others are legitimate differences in treatment based on sex. Students who claim a transgender identity, no doubt, do not like being categorised by sex, but it is incorrect to label it discrimination because it is reasonable, on the grounds of safety and dignity, for schools to have different practices for boys and girls.

Even when a school policy or practice treats boys and girls differently, if it is well designed, meets an important need, and is reasonable, it is lawful under Part 1A S20L of the HRA.

The LC uses data from Counting Ourselves, an online survey of rainbow young people, to justify its claims of runaway discrimination. The statistics are presented as irrefutable fact but the survey was not a random sample of a population and cannot be verified against a control group. Further, asking respondents to self-report attempted suicide is known to overestimate the rate. The report itself says, “our use of nonprobability sampling means that the generalizability of our results to the wider transgender population in Aotearoa/New Zealand and beyond should be interpreted with caution”.

RGE submits that Section 21 of the HRA should not have the phrase “transgender, non-binary, and people who have an innate variation of sex characteristics” added to its list of protected characteristics. The Issues Paper has not provided a clear definition of any of these categories. It admits that innate variation of sex characteristics are “often not obvious to strangers” (3.56.) No addition is needed to the HRA for characteristics that are not visible or impossible to precisely define.

Laws should be fit for purpose… carefully designed to achieve their goals… [and] not overreach or result in unintended consequences. (4.50) The proposed categories are subjective, fluid, unverifiable, and have no boundaries and are therefore not the basis for good law. Should it be decided to amend Section 21, the phrase “variations of sex characteristics or non-conformity to sex stereotypes” is preferable.

The unique needs of schools

Questions 11 & 51

Sex matters in schools because children are uniquely vulnerable. There are good reasons of privacy, dignity, and safety for treating boys and girls differently. The rules are there to keep children safe and should not be bent for any child or adult.

It is not possible to properly protect children and run a school safely if the sex of all the children and the staff is not known. This is a basic safeguarding principle. Principals are in loco parentis and must think of the needs of the whole school. The wishes and feelings of some should never be prioritised over the beliefs and values of others.

No child should ever be treated at school as if they are literally of the other sex. It is not the role of teachers to provide gender identity affirmation to their students, nor do they have the qualifications to do so.

Affirming a child as the opposite sex both harms that child, who is being put onto a psychological conveyor belt, and teaches all the other children the falsehood that humans can change sex. Schools that allow social transition before children have reached the cognitive milestone of sex constancy are disrupting the normal development of all the children in the school.

School policies must be simple and clear so that every child understands them and can keep within the safety framework.

When school policies are based on SEX, they:

• are easy to understand and unambiguous.

• remove uncertainties because they are based on a simple and immutable characteristic.

• uphold the dignity and safety of everyone.

• are non-discriminatory (symmetrical) because they apply equally to everyone, no matter how they identify.

• allow for freedom of belief and freedom of expression.

• respect the values and beliefs of everyone in the school community.

• model the attitude that there is no right or wrong way to be a boy or girl.

Schools should have the same exceptions for sex-differentiated activities as those suggested for tikanga in 12.17. It is basic safeguarding that males and females be treated differently in schools – this is for the benefit of the adults as well as the children.

Practical effects of protecting ‘gender identity’

Question 50

In Chapter 12, the Issues Paper mainly discusses enrolment policies and has barely considered the implications in the daily life of schools if undefinable gender identity is given precedence over sex. It is not safe or workable to ask schools to ignore the sex of its students or staff.

There are many practical implications for schools when cross-sex identities are affirmed and prioritised, including but not limited to:

• Gender identities being put on a pedestal and given priority over fact. Teachers and students being expected to lie about another’s sex and adhere to a set of beliefs they do not hold.

• Safe supervision of students in out of school activities being compromised by not knowing the sex of teachers or students in their care.

• Special character schools or those with a religious majority having their values overridden.

• Stifling of freedom of expression for students, teachers, and the whole community.

• Pressure on lesbian and gay teens to identify as trans.

• Increased opportunities for bullying – including of teachers by students. 

• Inappropriate interventions by teachers against parental wishes or without their knowledge.

• Schools colluding with students to keep secrets from parents ( a huge red flag).

• Parents not knowing the true sex of their child’s friend.

• Young children feeling betrayed when they discover they have been lied to about the sex of other students.

• Loss of trust in schools by parents.

Allowing choice in uniform and name provides flexibility for students without requiring others to affirm that someone’s sex has changed. Using biologically accurate English pronouns upholds everyone’s freedom of belief and expression.

Single-sex schools

Question 52

There are many reasons, including previous trauma, why a single sex school may be preferred. That choice should not be thwarted to suit the feelings of a few individuals of the opposite sex.

Non-binary students

Question 53

Non-binary is another indefinable term that should not be included in any law.

Single-sex facilities

Questions 13, 58, 59 & 62

Attendance at school is compulsory and therefore appropriate toilet facilities should be provided without question. As both girls and boys desire privacy from the opposite sex, schools should retain separate toilets and changing rooms for each. Unisex facilities can be added for the small numer of students who don’t wish to use the ones designated by sex.

The innate worth of all individuals includes girls who do not want to share facilities with boys. Girls have reported having to wipe male urine off toilet seats before they can use them and being subjected to boys using the stalls with the door open.

It is a safety imperative in schools that the sex of students and staff is known. This could be confirmed at enrolment either by a sworn affidavit or by providing the original certificate issued at birth.

Single-sex sports

Question 64

Sports teams for girls or women should be exclusively for those who are of the female sex - whose bodies are capable of producing ova. Any other criteria places the wishful thinking of males ahead of the safety and fairness of females. The incidence of DSD conditions that are not readily classified as male or female is so rare (1:5500) that it is not relevant to schools.

Misgendering and deadnaming

Question 75

There should be no regulation of “misgendering and deadnaming” which are ideological concepts being forced on the majority who do not adhere to gender identity beliefs. ‘Preferred pronouns’ or ‘misgendering’ should be excluded from schools, in the same way as other religious and ideological terminology is excluded.

• Humans cannot change sex. Asking children to use wrong-sex pronouns is teaching them that some humans can change sex.

• Children do not have freedom of choice in schools. When a teacher role-models using wrong-sex pronouns, children will be coerced to follow suit, no matter their personal beliefs.

• Mandating the use of ‘preferred pronouns’ is akin to mandating the use of “Amen” or similar religious mantra at the end of sentences.

• Using wrong-sex pronouns is extremely confusing and destabilising for new speakers of English and for children with intellectual disabilities or neurodiversity.

• Using wrong-sex pronouns gives subtle permission for children to enter spaces and sports that were reserved for the opposite sex.

• The concept of ‘misgendering’ provides a whole set of new bullying opportunities, and even censure in some schools, against those children who make mistakes in ‘preferred pronoun’ use.

• Children who have been routinely addressed with wrong-sex pronouns will find it harder to reclaim their correct sex, should they later resile from a transgender identity.

• Nicknames or other name choices, including ones that may be associated with the opposite sex, can be used without asserting that a person’s sex has actually changed.